European Union's primary influence and dominance (EU) Two of the four constitutional principles in the EU Law concern the supremacy of laws over domestic laws. The articles of the treaties or the laws of the European Community (EC) do not directly allude to these principles. There is no explicit language in the Treaty on European Union (TEU) addressing the relative primacy of member state national legislation and community law. However, Article 10 of the Treaty on European Union imposes an implied responsibility on member nations to draft national laws that uphold the Treaty's obligations. The article further directs the member states to refrain from all actions which might interfere with the goals of the European Union Treaty.
The European Court of Justice (ECJ) is the leading structure in the promulgation and interpretation of the Community law for member states. The ECJ has therefore been developing land mark cases that discuss the essential doctrines since its inception. The European Court of Justice derives its authority from Article 220 of the TEU which expressly gives the body the mandate to interpret and apply the Treaty in accordance to the law.
European Court of Justice’s Perspective
Every legal system in the world requires a strong system of judicial safeguards whenever its principles and authority are challenged by other existing laws and institutions. Therefore, the community legal system equally needs effective authority and framework to protect its illegibility and mandate over contrasting national legislations of member states. The European Court of Justice is the main institution that formulates the framework for the judicial system of the European Community.
The ECJ makes its decisions through a simple majority votes by the judges of the institution. The treaty requires all the member countries to respect and adhere to the decisions of the ECJ on matters concerning interpretation and supremacy of the community law. Therefore, the national courts of member states are expected to draw reference and direction concerning issues on the provisions of the treaty from the European Community Law. Article 234 of the Treaty on European Union states as follows:
“The Court of Justice shall have jurisdiction to give preliminary rulings concerning
The interpretation of the Treaty;
The eligibility and interpretation of acts of the frameworks of the Community…
where such a question is raised before any court …of a Member State that court…..may, if it considers that a decision on the question is necessary to enable it to give judgment, request the ECJ to give a ruling……..Where any such question is raised……before a domestic court of a Member Country against whose judgments there is no judicial remedy under national law, the court……shall bring the matter before the Court.”
The doctrines of Direct Effect and Supremacy have been achieved by the European Court of Justice through the article 234 of the treaty. The provision ensures that there is uniform application of the community law when it differs with domestic legislation in any of the countries that are under the European Community.
In Costa v. ENEL (1964), the European Court of Justice explained its constitutional theory regarding the conflict by stating that a sovereign community had been created by the member states by limiting their sovereign rights. In this case, an individual had approached his local court to cry foul over the inconsistency of the national law that nationalized the production and distribution of electricity, with the European Treaty law. The court of the member state was unable to adjudicate on the matter and consequently referred the issue to the European Court of Justice for direction and a preliminary judgment. The ECJ stated in its ruling that the European Community had both external and internal independence of power which is competent and applicable to all the member states. The court stipulated that it was impossible for countries to formulate subsequent unilateral measures that are against the provisions or orders of the Treaty that they had accepted.
In the ruling, the ECJ cited Article 189 of the Treaty along with the primacy of the European Community law to show that the regulations of the treaty have binding effect and applicability to all the countries that have subscribed to the European Union. The provision does not have any reservation concerning its applicability. The court opined that the nullification of the provision by a country through internal legislation would be inappropriate because the article has not reservations. Therefore, the ECJ in its judgment stipulated that because the law was derived from the treaty which is an independent source of legislation, it cannot be superseded by any domestic laws. The European Community has an original and special nature that cannot be deprived its legal basis and purpose in the union. The court further noted that once states had acknowledged the transfer of their rights and obligations from their domestic legal systems to the E.U legal system it was permanent. The member countries to the Treaty are unable to overturn the limitation of their sovereign rights which restricts the applicability of subsequent unilateral domestic legislations that are incompatible with the EU laws.
In Internationale Handelsgesellschaft v. Einfuhr (1970), the ECJ stipulated that an issue regarding the legal status or supremacy of a conflicting domestic legislation over community law was not a matter that was difficult to conclude. The court further stated that a direct applicable European Community law was not challengeable in any domestic court, and not even a fundamental rule of national constitutional legislation could challenge the provisions. Allegations by member countries that discuss the validity of the EU law and its effect in the confines of a domestic legal system cannot be successful in the international court.
The decision in the case was controversial because it was perceived to undermine the German Constitutional Court. The ECJ had ignored the constitutional principles in Germany, and the domestic court was unpleased by the decision and termed it as dictatorial and inappropriate because it breached a national legal order in the country. The ECJ used the rulings of this case to formulate the European Union fundamental rights. The rights were subsequently declared general principles of law that are applicable by the court in matters falling under the legal framework of the European Community.
In the Italian case of Simmenthal SPA (1978), the judge had a difficult time reconciling the conflict between a municipal and EU legislation; the Italian public health and veterinary laws and an EU Council Regulation on the common market for veal and beef. The Italian Constitution Court is the only body with the mandate to declare a domestic law that contravenes the Regulations of the European Community as unconstitutional. The ordinary courts in the country do not have the powers to rule on instances of supremacy of EC Regulations and domestic laws.
The European Court of Justice stipulated that any court in a member state has the duty to disregard inconsistent laws without relying on direction from the constitutional court. The Simmenthal Case is important because it gives a good example on the applicability of the principles of direct effect and supremacy of European Community law over domestic legislations. The ECJ stipulated that the issue of jurisdiction was irrelevant even if the E.C case was brought before a domestic court that is not entitled to discuss the matter. ECJ stated that every domestic court had the duty to set aside national laws that were inconsistent with the Community law.
Perspective of Member Countries
The doctrines of Supremacy of the EU law and Direct Effect are products of the European Court of Justice. Majority of the member countries are however against these principles and agree that they were formulated through mischievous mechanisms by the court. Netherlands, on the contrary, has accepted the doctrines by making an amendment to its constitution. The amended provision stated that all self-executing articles of treaties and resolutions of international bodies are effective and binding to all citizens in the country. The amendment further stated that the provisions of the treaties are supreme over all national laws including the Acts of parliament, subsidiary legislations and the Constitution.
France
The country has jurisdictional limitations on its courts for supremacy of the European Union law. The French Constitution has conferred the power to adjudicate on constitutionality of laws to only the Constitutional Council. In the Semoules case, the doctrine of Supremacy was rejected by the Supreme Administrative Court because the judges were unable to find inconsistent provisions to the European Union law due to lack of jurisdiction.
A contrasting view was taken in the Café Jacques Vabres case when the judge in the ordinary judicial court gave supremacy to international law. The ruling stated that during conflict between domestic laws and ratified international legislation, the E.C law will prevail. Article 55 of the French Constitution gives supremacy to treaties that have been ratified and accepted by the country. Therefore, municipal laws or Acts of Parliament will be subordinate to the international legislations during conflicts. Thus, the French Nation gives supreme authority to the EU law through its constitution and not by the case laws decided by the ECJ.
Germany
The Basic Law for the Republic of Germany is a legislation that guides the applicability for legislations in the country. Article 25 of the Act stipulates that all the rules of public international law shall form part of the federal legislation in the nation. The international laws, according to the Act, will be supreme over domestic statutes as well as incorporate rights to the citizens of the country.
The Supremacy of the EU law over domestic legislation in Germany is well stipulated under Article 25 of the Constitution and not the explanation by the European Court of Justice. The courts in the country have been quick to acknowledge the superiority of the E.C law in instances where there are not contradictory provisions with the country’s Constitution and no competency issues.
The court made a decision that it did not surrender its jurisdiction over basic rights but will not use its powers as long as the protection of the rights by the ECJ was still active. The case involved the dispute between national and EC laws over the rights. The courts in the country believe that they have the jurisdiction to determine the constitutionality and applicability of provisions of E.C laws and actions.
The United Kingdom
The UK is a strict dualist nation that has distinctly separated international and domestic laws from each other in the system. The internal provisions of law in the U.K are strictly and only applicable between the borders of the country and they cannot interfere with the international legal framework system. The international treaty is equally effective and authoritative on the international stage. The international laws can only be applied in the UK through two ways. The first method is via the adoption of legal measures from the treaty into a domestic provision in the nation. The second mechanism is by way of legal facilitation plan that admits the provision of the international law and regulations in the country.
Therefore, it is notably seen that the United Kingdom can only accept the supremacy doctrine through acts of parliament or amendment of the constitution. However, the UK Constitution is not written and thus it is difficult to even discuss issues concerning amending the non-written legal system of the country. The U.K has the principle of Parliament Sovereignty which dictates that the body has the freedom of doing any act except engaging in agreements or actions that future parliaments will be unable to change or repel. As such, the courts in the country are unable to rule against legislations that have been formulated by parliament.
The European Communities Act of 1972 is the legal framework that gives provisions for the domestic effect of European Union law in the United Kingdom. Section 2(1) of the Act stipulates that all EU laws that are part of the Community will have effect in the UK courts without prejudice. However, it is worth noting that the Act is a creation of parliament just like any other legislation. Therefore, the provisions of the European Communities Act can as well be repealed by any parliament in the UK even if they are immune from court decisions. The section thus does not offer a complete immunity to the European Union law and its applicability in the country.
Bibliography
Books and Journals
Alter, K., “Establishing the Supremacy of European Law: The Making of an International Rule
of Law in Europe”, Oxford University Press, 2001
BrÎndusa Marian, “The Dualist and Monist Theories. International Laws Comprehension of these
Theories,”The Juridical Current, Vol. 1-2 (2007), June, p. 16-27
Craig, P. and G. De Búrca, “EU Law Text, Cases and Materials (Fourth Edition)”, Oxford
University Press, 2007
Joseph Fleuren (2010). “The Application of Public International Law by Dutch Courts”,
Netherlands International Law Review, 57, p. 245-266
Cases
Administration des Douanes v Société ‘Cafés Jacques Vabre’ et Sarl Weigel et Cie, [1975] 2
CMLR 336
Costa v. ENEL (1964) ECR 585; (1964) CMLR 425
Internationale Handelsgesellschaft v. Einfuhr (1970) ECR 1125; (1970) CMLR 255
Simmenthal SPA (1978) ECR 629; (1978) 3 CMLR 263
“Wünsche Handelsgesellschaft GmbH & Co. v Federal Republic of Germany”, EUR-Lex –
61985CO0069 – EN
Legislations
Consolidated Version of the Treaty on European Union [2008] OJ C115/13
Council Regulation (EC) 139/2004 on the control of concentrations between undertakings (EC
Merger Regulation) [2004] OJ L24/1, art 5
The Basic Law for the Federal Republic of Germany , adopted on May 23, 1949
The European Communities Act of 1972
